District of Massachusetts IP Blog

The Mysterious Infringing Extendible Golf Brush

Halloran (Andover, MA), a solo inventor, sued Bohannon (Emerald Hills, CA) for infringement of Patent No. 6,112,357 directed to an extendible golf brush.

 

Practice note:  if the complaint says that a copy of the patent is attached, actually attach the patent.  Don’t instead attach a printout of the patent text (which has no figures) from the USPTO website. 

 

For the curious out there, this is an extendible golf brush (Fig. 1 of the patent, easily obtainable for free):

 

 
 
 Halloran v. Bohannon, 10-10317-RWZ (D. Mass. Feb. 23, 2010)

Cheaters Never Win; Cheating Aids Get Dragged Into Federal Court

Jagex (Cambridge, UK) is suing Impulse Software (Indialantic, FL) and its owners for copyright and trademark infringement as well as violations of the DMCA and Computer Fraud and Abuse Act.  Jagex owns and operates the RuneScape massive multiplayer online game.  Jagex alleges that the defendants operate a variety of cheating websites for such online games, including for RuneScape, which allow players to advance in the game without the necessary participation.  The complaint details how Jagex believes the defendants’ software operates and how the defendants make money from the software.

 

Interesting that the case was filed in D. Mass., as neither party seems to have a connection to the Commonwealth.  Perhaps this case may end up transferred, likely to Florida.

 

Jagex Ltd. v. Impulse Software, 10-10216-RBC (D. Mass. Feb. 9, 2010)

Pizza Knockoff

Boston Restaurant Associates (Lynnfield, MA) has sued Gambino’s Restaurant, Inc. (South Weymouth, MA) for infringement of BRA’s trademark in its REGINA PIZZA T-shaped sign and artwork.  I love visuals, so judge for yourself:

 

 

Interestingly, while BRA asserts that it owns the copyright in the original artwork, the complaint does not assert a copyright infringement claim.

 

This case may not go far, as the complaint alleges the defendant agreed by telephone to cease use of the T-shaped sign but hadn’t stopped yet, hence the complaint.

 

Boston Restaurant Associates, Inc. v. Gambino’s Restaurant, Inc., 10-10215-RGS (D. Mass. Feb. 9, 2010)

What Does God Want With a Copyright?

This case involves a dispute regarding the copyrights in translated religious texts.  In the 70s / 80s the plaintiff translated a number of Eastern Orthodox texts from the original Greek into English.  [Although Judge Stearns notes that the works were registered with the PTO he likely meant the Copyright Office.]  Several years ago the parties were involved in another copyright case in the E.D. Mich. regarding a different work.  That case settled.  Here the defendant is accused of breaching that settlement agreement as well as infringing the plaintiff’s copyrights in a number of other works.

 

On summary judgment the court found that the defendant had breached the settlement agreement by posting sections of the earlier disputed work on his website without permission; the defendant’s attempt to void the settlement was denied.  The plaintiff also prevailed on the copyright infringement claim.  The defendant’s fair use defense failed, as did its attempt to skirt the infringement charge by claiming that the works were instead owned by the non-party Russian Orthodox Church (an argument based on unauthenticated church documents rather than written copyright transfers).

 

http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=stearns/pdf/holytransfigurationmonastery.pdf

 

Society of the Holy Transfiguration Monastery, Inc. v. Archbishop Gregory of Denver, Colorado, 07-12387-RGS (D. Mass. Feb. 18, 2010)

Judge Gertner Awards Attorneys' Fees In Patent Case

Judge Gertner awarded close to $180k in attorneys’ fees and costs following a patent case that involved both willful infringement and bad faith litigation tactics.  The award reflected a blended rate of $351 per hour for just over 500 hours of work which counsel noted was well below the average for patent cases in Boston where less than $1 million was at risk.

 

Although the decision itself doesn’t give many details about the bad acts (other court papers are referenced for specifics) the order is noteworthy simply because of the rarity of such fee awards.

 

Gentile v. Sun Hockey, Inc., 05-11885-NG (D. Mass. Jan. 20, 2010)

Solo Inventor Strikes Again

Dr. Marv Freadman (Chelsea, MA) has sued First Alert (Aurora, IL) and a variety of other companies for infringement of Patent No. 6,589,761 directed to a method and apparatus for detecting bacteria by virtue of their sales of various detection kits.

 

A few weeks ago, Mr. Freadman sued Kimberly-Clark on the same patent using the same attorney.  (See http://bostonipblog.typepad.com/dmass-ip-blog/2010/01/kimberlyclark-sued-by-solo-inventor.html)  Interestingly, this new case was not filed as a related case and so it was assigned to Judge Saris, whereas the previous case was assigned to Judge Woodlock.  That should be corrected.

 

Freadman v. First Alert, et. al., 10-10236-PBS (D. Mass. Feb. 11, 2010)

Laser Treatment Case Settles

Cynosure and Cooltouch have settled a patent infringement action that was pending before Judge Gorton.  The consent judgment states that Cooltouch infringed claims of Cynosure’s Patent No. 6,206,873 directed to a method for eliminating adipose layers using laser energy and that the patent is valid and enforceable.

 

This settlement puts to rest the latest in a chain of lawsuits surrounding medical devices which apply laser energy.  Various other cases across the country have included a variety of entities (as both plaintiffs and defendants), some of which no longer exist, including Diomed, VNUS, AngioDynamics, and Vascular Solutions.

 

Cynosure, Inc. v. Cooltouch, Inc., 08-10026-NMG (D. Mass. Feb. 5, 2010)

Do Not Sell “Do-Not-Call” Software

Gryphon Networks (Norwood, MA) has sued Contact Center Compliance Corp. (Santa Rosa, CA) for infringement of Patent No. 6,130,937 directed to a system for handling do-not-call requests.  CCCC’s “SmartBlock” product was specifically named in the complaint.

 

This case was assigned to Magistrate Judge Sorokin.

 

Gryphon Networks, Corp. v. Contact Center Compliance Corp., 10-10258-LTS (D. Mass. Feb. 16, 2010)

Lacrosse Helmet Trade Dress Suit

Sport Helmets, Inc. (d/b/a “Cascade”) (Liverpool, NY) sued New Balance, parent company of Warrior Sports, Inc. (Warren, MI) for trade dress infringement and dilution resulting from Warrior’s sales of its “TROJAN” lacrosse helmet which Cascade alleges infringes its rights in its “CPX” helmet.

 

The complaint is a bit over the top with the history of Cascade, comparison of the products, comments from the public, and other rhetoric.  (I smell a preliminary injunction motion.)  As is often the case with trade dress cases, the images say far more than the words.  You be the judge:

 

 

Two quick questions: 

 

(1)  How much of the trade dress design of the helmet is functional? (Cascade alleges none); and

 

(2)  If the CPX design is so important to Cascade (which takes up a good portion of the complaint), why doesn’t Cascade have a registration in the design?

 

Sport Helmets, Inc. v. New Balance Athletic Shoe, Inc., 10-10179-RGS (Feb. 5, 2010)

 

[UPDATED to more precisely state the functionality question and to include the complaint.]

 

Download Cascadewarriorcomplaint

Air Let Out of Racing Car Trademark Suit

In the “second lap in this high-octane litigation” Shelby asserts that Factory Five Racing and a number of other entities infringe Shelby’s trademarks and trade dress designs in the Daytona Coupe Cobra.  Based on a prior settlement agreement Judge Saris dismissed the claims against Factory Five but allowed claims against another defendant to remain.  The res judicata analysis of the various dismissed claims (some with prejudice, some without) is somewhat involved.

 

As to the infringement and dilution claims against the remaining defendant, which surrounded use of plaintiff’s marks in domain names and metatags, the court held that the defenses raised (non-competition and fair use) were too factually intensive to dispose of in a Rule 12 motion.

 

http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=saris/pdf/shelby%20memo%20and%20order.pdf

 

Shelby v. Factory Five Racing, Inc., 09-10281-PBS (Feb. 16, 2010)